Cross v Kirklees Metropolitan Borough Council: CA 27 Jun 1997

The Council’s duty to maintain a highway is not absolute. It must take reasonable steps to prevent or clear ice forming on pathway. Lord Justice Evans analysed the application of Section 41 to a situation which arose from ice and snow. In any case of this kind there is an obligation on the plaintiff to establish that there has been, as a result of the defect of which he or she complains, a foreseeable risk of injury. He said: ‘I note that first the council’s duty under s 41 is simply to ‘maintain the highway’. There is no express reference to safety or to the absence of danger. But the cause of action which arises when the duty is broken requires proof of injury caused by the failure to maintain, and the risk of injury must have been foreseeable by the council (per Diplock LJ in Burnside’s case and Lord Denning MR in Heydon’s case ). So for the purposes of civil liability the duty is to maintain the highway so as to exclude the foreseeable risk of injury resulting from its use.’ He later said: ‘The duty to maintain includes taking preventative or clearance measures which are sufficient to keep the surface reasonably safe . This means (a) what measures are sufficient will depend in part on what use of the highway can be anticipated, and by whom; and (b) that if no or insufficient measures are taken within a reasonable time, and injury is caused thereby, then the plaintiff may establish at least a prima facie breach of duty under s 41. The authority can then rely, if it chooses to do so, on the statutory defence under s 58.’


Lord Justice Evans


Times 10-Jul-1997, [1997] EWCA Civ 1986, [1998] 1 All ER 564




Highways Act 1980 41


England and Wales


CitedHeydon’s Case 1584
Mischief rule of Iinterpretation
Lord Coke stated the basis of the mischief rule of interpretation: ‘For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and . .

Cited by:

CitedJane Marianne Sandhar, John Stuart Murray v Department of Transport, Environment and the Regions CA 5-Nov-2004
The claimant’s husband died when his car skidded on hoar frost. She claimed the respondent was liable under the Act and at common law for failing to keep it safe.
Held: The respondent had not assumed a general responsibility to all road users . .
CitedGoodes v East Sussex County Council HL 16-Jun-2000
The claimant was driving along a road. He skidded on ice, crashed and was severely injured. He claimed damages saying that the Highway authority had failed to ‘maintain’ the road.
Held: The statutory duty on a highway authority to keep a road . .
CitedEnion v Sefton Metropolitan Borough Council CA 9-Feb-1999
The roadway was regularly closed off when flooded by the sea, and then cleaned up afterwards. The claimant slipped on seaweed on the road. The Council appealed against an award of damages, saying it was not practicable to close the road off to . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Local Government

Updated: 29 May 2022; Ref: scu.142383